FAMILY MEDICAL LEAVE Policy Code: 7517 - … MEDICAL LEAVE Policy Code: 7517 BOARD OF EDUCATION Page 3 of 23 c. any period of incapacity or treatment due to a "chronic serious health

FAMILY MEDICAL LEAVE Policy Code: 7517

BOARD OF EDUCATION Page 1 of 23

Summary: This policy provides an overview and guidance on the final regulations implementing

the Family and Medical Leave Act of 1993 (‘‘FMLA’’), the law that provides eligible employees

who work for covered employers the right to take job-protected, unpaid leave for absences due to the

birth of the employee’s son or daughter and to care for the newborn child; because of the placement

of a son or daughter with the employee for adoption or foster care; in order to care for a son,

daughter, spouse, or parent with a serious health condition; or because of the employee’s own serious

health condition that makes the employee unable to perform the functions of his or her job. The final

regulations also address new military family leave entitlements included in amendments to the

FMLA enacted as part of the National Defense Authorization Act for FY 2008, which provide

additional job-protected leave rights to eligible employees of covered employers who provide care

for covered service members with a serious injury or illness and because of qualifying exigencies

arising out of the fact that a covered military member is on active duty or has been notified of an

impending call or order to active duty in support of a contingency operation.

Effective Date: These rules are effective on January 16, 2009. Also, the summary in this section

does not in any way alter the requirements of the Family and Medical Leave Act. If any part of this

section is inconsistent with the Act, the Act takes precedence. Administrators should not rely

exclusively on this summary for administration of their legal responsibility under the FMLA. More

information is available on the Internet at www.dol.gov/esa/whd/fmla/.

Definitions

A. Parent. A biological, adoptive, step or foster father or mother or an individual who stood in loco

parentis (a person who is in the position or place of a parent) to an employee when the employee

was a child.

B. Child A son or daughter who is:

1. Under 18 years of age, or

2. Is 18 years of age or older and incapable of self-care because of a mental or physical

disability and who is:

a) a biological child;

b) an adopted child; a

c) a foster child (a child for whom the employee performs the duties of a parent as if it

were the employee’s child);

d) a step-child (a child of the employee’s spouse from a former marriage;

e) a legal ward (a minor child placed by the court under the case of a guardian); or

f) a child of an employee standing in loco parentis.

C. Spouse A husband or wife recognized by the State of North Carolina.

D. Covered Service Member for Military Caregiver Leave A covered service member is a

member of the Armed Forces, including the National Guard or Reserves who, as a result of a

serious injury or illness sustained while on active duty in support of a contingency operation, is

undergoing medical treatment, recuperation, or therapy, or otherwise on the temporary disability

retired list.



E. Covered Service Member for Exigency Leave An employee’s spouse, son, daughter, or parent

who is a member of the National Guard or Reserves who is on active duty or has been called to

active duty in support of a contingency operation.

F. Active Duty or Call to Active Duty for Exigency Leave A call or order to active duty (or

notification of an impending call or order to active duty of a member of the National Guard or

Reserves in support of a contingency operation.

G. Contingency Operation a call or order to, or retention on, active duty of service members

during a war or during a national emergency declared by the President or Congress.

H. Service Member’s Next of Kin The nearest blood relative of the service member, other than

spouse, parent, son, or daughter, in the following order of priority:

1. Blood relatives who have been granted legal custody of the service member by court decree

or statutory provisions;

2. Brothers and sisters;

3. Grandparents, aunts and uncles; and

4. First cousin.

Advisory Note: Unless the covered service member has specifically designated in writing another

blood relative as his or her nearest blood relative for purposes of military caregiver leave, in which

case the designated individual shall be deemed to be the next of kin. (To confirm the employee and

service member share one of the familial relationships or to confirm the employee has been

specifically designated as the service member’s next of kin, the LEA may request a statement from

the service member outlining the familial relationship or indicating the employee has been

designated as the “next of kin.”)

I. Serious Health Condition An illness, injury, impairment, or physical or mental condition that

involves:

1. Inpatient care, i.e., an overnight stay in a hospital, hospice or residential medical facility,

including any period of incapacity (meaning inability to work, attend school or perform other

regular daily activities due to the serious health condition, treatment for or recovery from), or

any subsequent treatment in connection with such impairment; or

2. Continuing treatment by a health care provider involving one or more of the following:

a. any period of incapacity as defined above of more than three consecutive calendar days,

and any subsequent treatment or period of incapacity relating to the same condition that

also involves:

b. any period of incapacity due to pregnancy or for prenatal care, even when the employee

or family member does not receive treatment from a health care provider during the

absence and even if the absence does not last more than three days (prenatal

examinations, severe morning sickness); or



c. any period of incapacity or treatment due to a "chronic serious health condition," even

when the employee or family member does not receive treatment from a health care

provider during the absence and even if the absence does not last more than three days,

which is defined as one:

(1) treatment two or more times (within 30 days of the beginning of the period of

incapacity and the first visit must take place within seven days of the first day of

incapacity) by a health care provider, by a nurse or physician’s assistant under the

direct supervision of a health care provider, or a provider of health care services (e.g.,

physical therapist) under orders of, or on referral by a health care provider; or

(2) treatment on at least one occasion resulting in a regime of continuing treatment (the

first visit must take place within seven days of the first day of incapacity) under the

supervision of the health care provider (course of prescription medication, i.e.,

antibiotic, or therapy requiring special equipment to alleviate the health condition,

i.e., oxygen); or

(3) requiring periodic visits (at least two visits per year) for treatment by a health care

provider, or by a nurse or physician’s assistant under the direct supervision of a health

care provider;

(4) or continuing over an extended period of time (including recurring episodes of a

single underlying condition); or

(5) which may cause episodic rather than continuing period(s) of incapacity, e.g., asthma,

diabetes, epilepsy, etc.

d. incapacity for a permanent or long-term condition for which treatment may not be

effective (Alzheimer's, a severe stroke or terminal stages of a disease); or

e. multiple treatments for restorative surgery or incapacity for serious conditions that would

likely result in a period of incapacity of more than three consecutive calendar days in the

absence of medical intervention or treatment (chemotherapy, radiation, dialysis, etc.); or

f. in case of a member of the Uniformed Services, "serious injury or illness" means an

injury or illness incurred by the member in line of duty on active duty in the Uniformed

Services that may render the member medically unfit to perform the duties of the

member's office, grade, rank or rating.

Advisory Note: Treatment includes, but is not limited to, examinations to determine if a serious

health condition exists and evaluations of the condition. Treatment does not include routine physical

examinations, eye examinations, or dental examinations. Ordinarily, unless complications arise, the

following are examples of conditions that do not meet the definition: common cold, flu, ear aches,

upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems,

periodontal disease, cosmetic treatments, etc. The following may meet the definition if all other

conditions of this section are met: restorative dental or plastic surgery after an injury or removal of

cancerous growths, mental illness resulting from stress or allergies, treatment from substance abuse.



J. Outpatient Status of Covered Service Member "Outpatient status", with respect to a covered

service member, means the status of a member of the Uniformed Services assigned to a military

medical treatment facility as an outpatient or a unit established for the purpose of providing

command and control of the Uniformed Services receiving medical care as outpatients.

K. Qualifying Exigency The reasons for which an employee may take leave because of a qualifying

exigency are divided into seven general categories:

1. short-notice deployment;

2. military events and related activities;

3. childcare and school activities;

4. financial and legal arrangements;

5. counseling;

6. rest and recuperation;

7. post-deployment activities;

8. parental care; and

9. additional activities agreed upon by the board and employee.

L. Health Care Provider A doctor of medicine or osteopathy who is authorized to practice

medicine or surgery in the State of North Carolina, or any other person determined by statute,

credential or licensure to be capable of providing health care services which include:

1. Physician Assistants;

2. Podiatrists;

3. Dentists;

4. Clinical Psychologists;

5. Clinical Social Workers;

6. Optometrists;

7. Nurse Practitioners;

8. Nurse Midwives;

9. Chiropractors;

10. Health care providers from who state approved group and HMO health plans will accept

certification of a serious health condition to substantiate a claim for benefits;

11. Foreign health care providers in above stated areas who are authorized to practice in that

country and who are performing within the scope f the laws; and,

12. Christian Science practitioners listed with First Church of Christian Scientists in Boston,

MA. (Note: In this situation, the employee cannot object to an LEA requirement to obtain a

second or third certification other than a Christian Science practitioner.)



M. Workweek The number of hours an employee is regularly scheduled to work each week,

including holidays (see Policy 7500, Workday and Overtime).

N. Qualifying Exigency Explanation When an absence is necessary because a covered service

member of the National Guard or Reserves is on active duty or has been called to active duty,

following is a list of reasons for which an employee may take leave because of a qualifying

exigency.

1. Short-notice Deployment Leave to address any issue that arises from the fact that the

employee is notified of an impending call or order to active duty seven or less calendar

days prior to the date of deployment. This leave can be used for a period of seven

calendar days beginning on the date the employee is notified.

2. Military events and Related Activities Leave to attend any official ceremony, program or

event sponsored by the military and to attend family support and assistance programs and

informational briefings sponsored or promoted by the military, military service organizations,

or the American Red Cross that are related to the active duty or call to active duty status of

the employee.

3. Childcare and School Activities Leave to arrange alternative childcare when the active duty

or call to active duty status necessitates a change in the existing childcare arrangement, to

provide childcare on an urgent, immediate need basis when the need arises from the active

duty or call to active duty, to enroll the child in or transfer the child to a new school or day

care facility when necessitated by the active duty or call to active duty, and to attend

meetings with staff at a school or a day care facility when such meeting are necessary due to

circumstances arising from the active duty or call to active duty status.

4. Financial and Legal Arrangements Leave to make or update financial or legal

arrangements to address the employee’s absence such as preparing and executing financial

and healthcare powers of attorney, transferring bank account signature authority, enrolling in

DEERS, obtaining military identification cards, or preparing or updating a will or living

trust.

5. Counseling: Leave to attend counseling provided by someone other than a healthcare

provider for oneself, for the covered military member, or for the child provided that the need

for counseling arises from the active duty or call to active duty status of a covered military

member.

6. Rest and Recuperation Leave to spend time with a covered military member who is on

short-term, temporary rest and recuperation leave during the period of deployment. Eligible

employees may take up to five days of leave for each instance of rest and recuperation.

7. Post-deployment Activities Leave to attend arrival ceremonies, reintegration briefings and

events, and any other official ceremony or program sponsored by the military for a period of

90 days following the termination of the employee’s active duty and to address issues that

arise from the death of a covered military member while on active duty status, such as

meeting and recovering the body of the military member and making funeral arrangements.



8. Additional activities where the LEA and employee agree to the leave Leave to address

other events which arise out of the covered military member’s active duty or call to active

duty status provided the LEA and employee agree that such leave shall qualify as an

exigency, and agree to both the timing and duration of such leave.

Covered Employees and Eligibility An employee’s eligibility for family and medical leave shall be made

based on the employee’s months of service and hours worked as of the date leave is to commence.

An employee is eligible if:

(a) Full Time (at least 30 hours per week or the number of hours established as full-

time for the class of work):

1. Permanent status, or interim status (if more than six (6) months); and

2. Has been employed for at least 12 months (need not be consecutive) 1, 2 and has been

employed for at least 1,250 hours of service during the 12-month period immediately

preceding the commencement of the leave or

(b) Part Time (at least 20 hours per week):

1. Permanent status, or interim status (if more than six (6) months); and

2. Has been employed for at least 12 months (need not be consecutive) 3, 4 and has

been employed for at least 1,250 hours of service during the 12-month period

immediately preceding the commencement of the leave or

(c) Full Time (at least 30 hours per week or the number of hours established as full-

time for the class of work):

1. Temporary (less than 6 months of employment) 5; and

2. Has been employed for at least 12 months (need not be consecutive) 6, 7 and has been

employed for at least 1,250 hours of service during the 12-month period immediately

preceding the commencement of the leave or

(d) Part Time (less than 20 hours per week):

1. Temporary; and

2. Has been employed for at least 12 months (need not be consecutive) 9, 10 and has

been employed for at least 1,250 hours of service during the 12-month period

immediately preceding the commencement of the leave.

Determining the 12-month Leave Period The 12-month period measured forward from the date an

employee’s first FMLA leave begins.

Amount of Leave and Qualifying Reasons for Leave:

1. An eligible employee is entitled to a total of 12 workweeks, paid or unpaid, leave during any 12-

month period:



a. For the birth of a child and to care for the newborn child after birth, provided the leave is

taken within a 12-month period following birth. (Note: An expectant mother may also take

FMLA leave before the birth of the child for prenatal care or if her condition makes her

unable to work, or requires a reduced work schedule.); or

b. For the placement of or to care for a child place with the employee for adoption or foster

care, provided the leave is taken within a 12-month period following placement. (Note:

FMLA leave must also be granted before the actual placement or adoption of a child if an

absence from work is required for the placement for adoption or foster care to proceed.); or

c. for the employee to care for the employee's child, spouse, or parent, where that child, spouse,

or parent has a serious health condition, or

d. because the employee has a serious health condition that prevents the employee from

performing one or more essential functions of the position, or

e. because of any qualifying exigency arising out of the fact that the spouse, or a son, daughter,

or parent is a covered military member on active duty (or has been notified of an impending

call or order to active duty) in support of a contingency operation.

Advisory Note: A husband and wife who are eligible for FMLA leave and are employed by the same

employer are limited to a combined total of 12 weeks during any 12-month period.

2. Military Caregiver Leave (Covered Service Member Leave) An eligible employee who is the

spouse, son, daughter, parent, or next of kin of a covered service member shall be entitled to a

total of 26 workweeks of leave during a single 12-month period (commencing on the on the date

the employee first takes leave) to care for a covered service member who has a serious injury or

illness incurred in the line of duty on active duty for which he or she is undergoing medical

treatment, recuperation or therapy; or otherwise in outpatient status; or on the temporary

disability retired list.

If an eligible employee does not take all of his or her 26 workweeks of leave entitlement to care

for a covered service member during this “single 12-month period,” the remaining part of his or

her 26 workweeks of leave entitlement to care the covered service member is forfeited. The 26-

workweek entitlement is to be applied as a per-covered service member, per-injury basis such

that an eligible employee may be entitled to take more than one period of 26 workweeks of leave

if the leave is to care for different covered service members or to care for the same service

member with a subsequent serious injury or illness.

During the single 12-month period, an eligible employee shall be entitled to a combined total of

26 workweeks of leave under (1) and (2) above.

WHAT COUNTS TOWARDS THE 12 OR 26 WEEKS LEAVE?

1. Paid or Unpaid Leave All approved periods of paid leave and periods of leave without pay

(including leave without pay while drawing short-term disability benefits) count towards the 12

(or 26, as appropriate) workweeks to which the employee is entitled. This includes leave taken

under the Voluntary Shared Leave Policy.



2. Holidays When occurring during a FMLA period of a full week count toward the FMLA leave

entitlement. Holidays occurring during a partial week of FMLA leave do not count against the

FMLA leave entitlement, unless the employee was otherwise scheduled and expected to work

during the holiday.

3. School or Office Closure If the LEA closes for one or more weeks, the days that the LEA is

closed do not count against the employees' FMLA leave entitlement, e.g. a school closing two

weeks for the Christmas holidays, spring break or summer vacation.

4. Workers’ Compensation Leave If an employee is out on workers’ compensation leave drawing

temporary total disability, the time away from work is not considered as a part of the FMLA

entitlement. The seven day waiting period runs concurrent with FMLA leave.

5. Compensatory Time Compensatory time can be used during the FMLA leave entitlement.

When used, it runs concurrent with FMLA leave.

6. Intermittent Leave or Reduced Work Schedule Leave may be taken intermittently or on a

reduced schedule for the following:

a. When medically necessary, to care for the employee's child, spouse, or parent who has a

serious health condition, or because the employee has a serious health condition.

Advisory Note: This would also apply to next of kin to care for a service member.)

b. Because of any qualifying exigency arising out of the fact that the spouse, son daughter, or

parent is on active duty or has been notified of an impending call or order to active duty.

c. When leave is taken after childbirth or for adoption/foster care, the employee may take leave

intermittently or on a reduced schedule only if the LEA agrees. There is no minimum

limitation on the amount of leave taken intermittently; however, the LEA may not require

leave to be taken in increments of more than one hour. If leave is foreseeable, based on

planned medical treatment, the LEA may require the employee to transfer temporarily to an

available alternative position for which the employee is qualified and that has equivalent pay

and benefits and better accommodates recurring periods of leave. Only the time actually

taken as leave may be counted toward the leave entitlement. Example: An employee

normally works 40 hours each week. The employee is on a reduced work schedule of 20

hours per week. The FMLA leave may continue for up to 24 calendar weeks.

Procedure: If an employee works a reduced or intermittent work schedule and does not use

paid leave to make up the difference between the normal work schedule and the new

temporary schedule to bring the number of hours worked up to the regular schedule, the LEA

must submit a personnel action form showing a change in the number of hours the employee

is scheduled to work. This will result in an employee earning pay and leave at a reduced rate.

The LEA remains responsible for paying the employee’s medical premium.



Limitations on Taking Leave near the End of an Academic Term:

a. An instructional employee begins leave more than five weeks before the end of a term.

The employer may require the employee to continue taking leave until the end of the term

if:

1) the leave will last at least three weeks; and

2) the employee would return to work during the three-week period before the end of

the term.

b. The employee begins leave during the five-week period before the end of a term because

of the birth of a son or daughter; the placement of a son or daughter for adoption or foster

care; to care for a spouse, son, daughter, or parent with a serious health condition; or to

care for a covered service member. The employer may require the employee to continue

taking leave until the end of the term if:

1) the leave will last more than two weeks; and

2) the employee would return to work during the two-week period before the end of the

term.

c. The employee begins leave during the three-week period before the end of a term because

of the birth of a son or daughter; the placement of a son or daughter for adoption or foster

care; to care for a spouse, son, daughter, or parent with a serious health condition; or to

care for a covered service ember. The employer may require the employee to continue

taking leave until the end of the term if the leave will last more than five working days.

For purposes of these provisions, "academic term" means the school semester, which

typically ends near the end of the calendar year and the end of spring each school year. In

no case may a school have more than two academic terms or semesters each year for

purposes of FMLA. An example of leave falling within these provisions would be where

an employee plans two weeks of leave to care for a family member which will begin

three weeks before the end of the term. In that situation, the employer could require the

employee to stay out on leave until the end of the term.

LEA RESPONSIBILITIES

Notification of FMLA Provisions Each LEA is required to post and keep posted in conspicuous

places a notice explaining the Act's provisions and providing information concerning the procedures

for filing complaints of violations of the Act with the Wage and Hour Division. The notice must be

posted prominently where it can be readily seen by employees and applicants for employment.

In addition to posting the FMLA provisions, handbooks and other written materials must include the

general notice information. Where such materials do not exist, the LEA must provide the general

notice to new employees upon being hired, rather than requiring that it be distributed to all

employees annually.



Agencies are permitted to distribute the handbook or general notice to new employees through

electronic means so long as all of the information is accessible to all employees, that it is made

available to employees not literate in English (if required), and that the information provided

includes, at a minimum, all of the information contained in the general notice. Note: LEAs may

duplicate and provide the employee a copy of the FMLA Fact Sheet available from the Wage and

Hour Division. http://www.blr.com/samples/31500900/newsletter%20sample.pdf.

Notice of Eligibility: When an employee requests FMLA leave, or when the LEA knows that an

employee's leave may be for an FMLA-qualifying reason, the employee must be notified of the

employee's eligibility to take FMLA leave within five business days, absent extenuating

circumstances. Employee eligibility is determined (and notice must be provided) at the

commencement of the first instance of leave for each FMLA-qualifying reason in the applicable 12-

month period. All FMLA absences for the same qualifying reason are considered a single leave if the

reason for the leave does not change during the applicable 12-month period.

If the employee is not eligible for FMLA leave, the notice must state at least one reason why the

employee is not eligible. Notification of eligibility may be oral or in writing.

If, at the time an employee provides notice of a subsequent need for FMLA leave during the

applicable 12-month period due to a different FMLA-qualifying reason, and the employee's

eligibility status has not changed, no additional eligibility notice is required. If, however, the

employee's eligibility status has changed the LEA must notify the employee of the change in

eligibility status within five business days, absent extenuating circumstances.

The LEA shall provide written notice detailing the specific expectations and obligations of the employee

and explaining any consequences of a failure to meet these obligations. This notice shall be provided to

the employee each time the eligibility notice is provided. If leave has already begun, the notice should be

mailed to the employee’s address of record. Such specific notice must include, as appropriate:

a. That the leave may be designated and counted against the employee's annual FMLA leave

entitlement;

b. Requirements for the employee to furnish certifications;

c. The employee's right to substitute paid leave;

d. Requirement for the employee to make any premium payments to maintain health

benefits and the arrangements for making such payments;

e. The employee's status as a "key employee" and the potential consequence that restoration

may be denied following FMLA leave, explaining the conditions required for such

denial;

f. The employee's rights to maintenance of benefits during the FMLA leave and restoration

to the same or an equivalent job upon return from FMLA leave; and

g. The employee's potential liability for payment of health insurance premiums paid by the

LEA during the employee's unpaid FMLA leave if the employee fails to return to work

after taking FMLA leave.



Designation of Leave as Family Medical Leave

It is the responsibility of the LEA to:

a. Determine that leave requested is for a FMLA qualifying reason; and

b. Designate leave, whether paid or unpaid, as family medical leave even when an employee

would rather not use any of the FMLA entitlement.

The LEA must give notice of the designation to the employee within five business days absent

extenuating circumstances. The notice may be oral or in writing, but must be confirmed in writing no

later than the following payday.

If the LEA determines that the leave will not be designated as FMLA-qualifying (e.g., if the leave is

not for a reason covered by FMLA or the FMLA leave entitlement has been exhausted), the LEA

must notify the employee of that determination.

For military caregiver leave that also qualifies as leave taken to care for a family member with a

serious health condition, the LEA must designate such leave as military caregiver leave first. The

leave cannot be counted against both an employee’s entitlement of 26 workweeks of military

caregiver leave and 12 workweeks of leave for other qualifying reasons.

The key in designating FMLA leave is the qualifying reason(s), not the employee’s election or

reluctance to use FMLA leave or to use all, some or none of the accrued leave. The LEA's

designation must be based on information obtained from the employee or an employee’s

representative (e.g., spouse, parent, physician, etc.).

If the LEA will require the employee to present a fitness-for-duty certification to be restored to

employment, the LEA must provide notice of such requirement with the designation notice. If the

LEA will require that the fitness-for-duty certification address the employee's ability to perform the

essential functions of the employee's position, the LEA must so indicate in the designation notice,

and must include a list of the essential functions of the employee's position.

The LEA must notify the employee of the amount of leave counted against the employee's FMLA

leave entitlement.

The LEA may retroactively designate leave as FMLA leave with appropriate notice to the employee

provided that the LEA's failure to timely designate leave does not cause harm or injury to the

employee. In all cases where leave would qualify for FMLA protections, the LEA and employee can

mutually agree that leave be retroactively designated as FMLA leave.

Designation of Paid Leave as FMLA Leave When an employee is on paid leave but has not given

notice of the need for FMLA leave, the LEA shall, after a period of 10 workdays, request that the

employee provide sufficient information to establish whether the leave is for a FMLA-qualifying

reason. This does not preclude the LEA from requesting the information sooner, or at any time an

extension is requested.

If an absence which begins as other than FMLA leave later develops into an FMLA qualifying

absence, the entire portion of the leave period that qualifies under FMLA may be counted as FMLA

leave.



Designation of FMLA Leave After Returning to Work The LEA may not designate leave that has

already been taken as FMLA leave after the employee returns to work, with two exceptions:

a. if an employee is out for a reason that qualifies for FMLA leave and the LEA does not learn

of the reason for the leave until the employee returns to work, the LEA may designate the

leave as FMLA leave within two business days of the employee’s return; or

b. if the LEA has provisionally designated the leave under FMLA leave and is awaiting receipt

from the employee of documentation. Similarly, the employee is not entitled to the protection

of the FMLA if the employee gives notice of the reason for the leave later than two days after

returning to work.

EMPLOYEE RESPONSIBILITIES

Notice: The employee shall give notice to the supervisor of the intention to take leave under this

policy unless the leave is a medical emergency. The notice must follow the LEA's usual and

customary call-in procedures for reporting an absence. The employee must explain the reasons for

the needed leave in order to allow the LEA to determine that the leave qualifies under the Act. If the

reason for leave is foreseeable and is:

a. For Birth/Adoption/Foster Care The employee shall give the LEA not less than a 30-day

notice, in writing. If the date of the birth or adoption requires leave to begin in less than 30

days, the employee shall provide such notice as is practicable, which means within one or

two business days of when the need for leave becomes known to the employee.

b. For Planned Medical Treatment The employee shall:

1) make a reasonable effort to schedule the treatment so as not to disrupt unduly the

operations; and

2) not give not less than a 30-day notice. If the date of the treatment requires leave to begin

in less than 30 days, the employee shall provide such notice as is practicable.

c. Due to Active Duty of Family Member: The employee shall provide such notice as is

reasonable and practicable.

If the employee will not return to work after the period of leave, the LEA shall be notified in writing.

Failure to report at the expiration of the leave, unless an extension has been requested, may be

considered as a resignation.

CERTIFICATION REQUIREMENTS FOR FAMILY AND MEDICAL LEAVE:

Certification: The employee shall provide certification in accordance with the provisions listed

below. If the employee does not provide medical certification, any leave taken is not protected by

FMLA.

The LEA should request medical certification within five business days after the employee provides



notice of the need for FMLA leave.

The employee shall provide a copy of the health care provider's certification within the time frame

requested by the LEA (which must be at least 15 calendar days) unless it is not practicable under the

particular circumstances to do so despite the employee's diligent, good faith efforts.

Certification Requirements: Certification shall be sufficient if it states the following:

a. The date on which the serious health condition commenced;

b. The probable duration of the condition;

c. The appropriate medical facts within the knowledge of the health care provider regarding the

condition;

d. When caring for a child, spouse or parent, a statement that the employee is needed and an

estimate of the amount of time that such employee is needed;

e. When for the employee’s illness, a statement that the employee is unable to perform the

functions of the position;

f. When for intermittent leave, or leave on a reduced work schedule, for planned medical

treatment, the dates on which treatment is expected and the duration;

g. When for intermittent leave, or leave on a reduced work schedule for the employee’s illness,

a statement of the medical necessity for the arrangement and the expected duration; and

h. When for intermittent leave, or leave on a reduced work schedule, to care for a child, parent

or spouse, a statement that the arrangement is necessary or will assist in their recovery and

the expected duration.

Note: Medical Certification Form - Form WH-380, developed by the Department of Labor as an

optional form for use in obtaining medical certification, including second and third opinions, may be

used. Another form containing the same basic information may be used; however, no information in

addition to that requested on Form WH-380 may be required.

Validity of Certification: If an employee submits a complete certification signed by the health care

provider, the LEA may not request additional information; however, a health care provider, human

resource professional, a leave administrator, or a management official representing the LEA may

contact the employee’s health care provider, with the employee’s permission, for purposes of

clarification and authenticity of the medical certification. In no case, may the employee's direct

supervisor contact the employee’s health care provider.

If an LEA deems a medical certification to be incomplete or insufficient, the LEA must specify in writing

what information is lacking, and give the employee seven calendar days to cure the deficiency.

Second Opinion: An LEA that has reason to doubt the validity of a medical certification may

require the employee to obtain a second opinion with the following conditions:

a. The LEA bears the expenses, including reasonable "out of pocket" travel expenses.



b. The LEA may not require the employee or family member to travel outside normal

commuting distance except in very unusual circumstance.

c. Pending receipt of the second (or third) opinion, the employee is provisionally entitled to

FLMA leave.

d. If the certifications do not ultimately establish the employee’s entitlement to FMLA leave,

the leave shall not be designated as FMLA leave.

e. The LEA is permitted to designate the health care provider to furnish the second opinion, but

the selected health care provider may not be employed on a regular basis by the LEA unless

the LEA is located in an area where access to healthcare is extremely limited.

Third Opinion: If the opinions of the employee’s and the LEA's designated health care providers

differ, the LEA may require the employee to obtain certification from a third health care provider,

again at the LEA's expense. This third opinion shall be final and binding. The third health care

provider must be designated or approved jointly by the LEA and the employee.

The LEA is required to provide the employee, within two business days, with a copy of the second

and third medical opinions, where applicable, upon request by the employee.

Recertification of Medical Conditions: An LEA may request recertification no more often than

every 30 days unless:

a. An extension is requested;

b. Circumstances described by the previous certification have changed significantly; or

c. The LEA receives information that casts doubt upon the employee's stated reason for the

absence.

If the minimum duration specified on a certification is more than 30 days, the LEA may not request

recertification until that minimum duration has passed unless one of the conditions above is met.

When the duration of a condition is described as "lifetime" or "unknown," the LEA may request

recertification of an ongoing condition every six months in conjunction with an absence.

The employee must provide the requested recertification to the LEA within the time frame requested

by the LEA (which must allow at least 15 calendar days after the LEA’s request), unless it is not

practicable under the particular circumstances.

Any recertification requested by the LEA shall be at the employee's expense unless the LEA provides

otherwise. No second or third opinion on recertification may be required.

Certification Requirements for Military Caregiver Leave:

a. Required information from the health care provider. When leave is taken to care for a

covered service member with a serious injury or illness, an LEA may require an

employee to obtain a certification completed by an authorized health care provider of the

covered service member. If the authorized health care provider is unable to make certain



military-related determinations outlined below, the authorized health care provider may

rely on determinations from an authorized DOD representative (such as a DOD recovery

care coordinator). An LEA may request that the health care provider provide the

following information:

1) The name, address, and appropriate contact information (telephone number,

fax number, and/or email address) of the health care provider, the type of

medical practice, the medical specialty;

2) Whether the covered service member's injury or illness was incurred in the

line of duty on active duty;

3) The approximate date on which the serious injury or illness commenced, and

its probable duration;

4) Information sufficient to establish that the covered service member is in need

of care and whether the covered service member will need care for a single

continuous period of time, including any time for treatment and recovery, and

an estimate as to the beginning and ending dates for this period of time;

5) If an employee requests leave on an intermittent or reduced schedule basis for

planned medical treatment appointments for the covered service member,

whether there is a medical necessity for the covered service member to have

such periodic care and an estimate of the treatment schedule of such

appointments; and

6) If an employee requests leave on an intermittent or reduced schedule basis to

care for a covered service member other than for planned medical treatment

(e.g., episodic flare-ups of a medical condition), whether there is a medical

necessity for the covered service member to have such periodic care, which

can include assisting in the covered service member’s recovery, and an

estimate of the frequency and duration of the periodic care.

7) (b) Required information from employee and/or covered service member. In

addition the LEA may also request that such certification set forth the

following information provided by an employee and/or covered service

member:

b. The name and address of the LEA of the employee requesting leave to care for a

covered service member, the name of the employee requesting such leave, and the

name of the covered service member for whom the employee is requesting leave to

care;

c. The relationship of the employee to the covered service member for whom the

employee is requesting leave to care;

d. Whether the covered service member is a current member of the Armed Forces, the

National Guard or Reserves, and the covered service member’s military branch, rank,

and current unit assignment;



e. Whether the covered service member is assigned to a military medical facility as an

outpatient or to a unit established for the purpose of providing command and control

of members of the Armed Forces receiving medical care outpatients (such as a

medical hold or warrior transition unit), and the name the medical treatment facility

or unit

5. Whether the covered service member is on the temporary disability retired list; and

6. A description of the care to be provided to the covered service member and an estimate of

the leave needed to provide the care.

The Department of Labor has developed an optional form (WH-385) for employees' use in obtaining

certification that meets FMLA's certification requirements. This optional form reflects certification

requirements so as to permit the employee to furnish appropriate information to support his or her

request for leave to care for a covered service member with a serious injury or illness. WH-385, or

another form containing the same basic information, may be used by the LEA; however, no

information may be required beyond that specified in this section. In all instances the information on

the certification must relate only to the serious injury or illness for which the current need for leave

exists. An LEA may seek authentication and/or clarification of the certification. However, second

and third opinions are not permitted for leave to care for a covered service member. Additionally,

recertifications are not permitted for leave to care for a covered service member.

CERTIFICATION REQUIREMENTS FOR QUALIFYING EXIGENCIES LEAVE:

Certification for Leave for Qualifying Exigencies: The LEA may require an employee to provide

a copy of the covered military member's active duty orders or other documentation issued by the

military which indicates that the covered military member is on active duty (or has been notified of

an impending call or order to active duty) in support of a contingency operation, and the dates of the

covered military member's active duty service. An LEA may require that leave for any qualifying

exigency be supported by a certification from the employee that sets forth the following information:

a) A statement or description, signed by the employee, of appropriate facts regarding the

qualifying exigency for which FMLA leave is requested. The facts must be sufficient to

support the need for leave. Such facts should include information on the type of qualifying

exigency for which leave is requested and any available written documentation which

supports the request for leave; such documentation, for example, may include a copy of a

meeting announcement for informational briefings sponsored by the military, a document

confirming an appointment with a counselor or school official, or a copy of a bill for services

for the handling of legal or financial affairs;

b) The approximate date on which the qualifying exigency commenced or will commence;

c) If an employee requests leave because of a qualifying exigency for a single, continuous

period of time, the beginning and end dates for such absence;

d) If an employee requests leave because of a qualifying exigency on an intermittent or reduced

schedule basis, an estimate of the frequency and duration of the qualifying exigency; and



(e) If the qualifying exigency involves meeting with a third party, appropriate contact

information for the individual or entity with whom the employee is meeting (such as the name,

title, organization, address, telephone number, fax number, and e-mail address) and a brief

description of the purpose of the meeting.

DOL has developed an optional form (Form WH-384) for employees' use in obtaining a certification

that meets FMLA's certification requirements. This optional form reflects certification requirements

so as to permit the employee to furnish appropriate information to support his or her request for leave

because of a qualifying exigency. Form WH-384, or another form containing the same basic

information, may be used by the LEA; however, no information may be required beyond that

specified in this Policy.

Verification: If an employee submits a complete and sufficient certification to support his or her

request for leave because of a qualifying exigency, the LEA may not request additional information

from the employee. However, if the qualifying exigency involves meeting with a third party, the LEA

may contact the individual or entity with whom the employee is meeting for purposes of verifying a

meeting or appointment schedule and the nature of the meeting between the employee and the

specified individual or entity. The employee's permission is not required in order to verify meetings

or appointments with third parties, but no additional information may be requested by the LEA. An

LEA also may contact an appropriate unit of the Department of Defense to request verification that a

covered military member is on active duty or call to active duty status; no additional information may

be requested and the employee's permission is not required.

Intent to Return to Work: An LEA may require an employee on FMLA leave to report

periodically on the employee's status and intent to return to work. The LEA's policy regarding such

reports may not be discriminatory and must take into account all of the relevant facts and

circumstances related to the individual employee's leave situation.

If an employee gives unequivocal notice of intent not to return to work, the LEA's obligations under

FMLA to maintain health benefits (subject to COBRA requirements) and to restore the employee

cease. However, these obligations continue if an employee indicates he or she may be unable to

return to work but expresses a continuing desire to do so.

It may be necessary for an employee to take more leave than originally anticipated. Conversely, an

employee may discover after beginning leave that the circumstances have changed and the amount of

leave originally anticipated is no longer necessary. An employee may not be required to take more

FMLA leave than necessary to resolve the circumstance that precipitated the need for leave. In both

of these situations, the LEA may require that the employee provide the LEA reasonable notice (i.e.,

within two business days) of the changed circumstances where foreseeable. The LEA may also

obtain information on such changed circumstances through requested status reports.



Fitness-For-Duty Certification: Agencies may enforce uniformly-applied policies or practices that

require all similarly-situated employees who take leave to provide a certification that they are able to

resume work. An LEA may require that the certification specifically address the employee's ability to

perform the essential functions of the employee's job. Where reasonable job safety concerns exist, an

LEA may require a fitness-for-duty certification before an employee may return to work when the

employee takes intermittent leave.

EMPLOYMENT AND BENEFITS PROTECTION:

Reinstatement: The employee shall be reinstated to the same position held when the leave began or

one of like pay grade, pay, benefits, and other conditions of employment. The LEA may require the

employee to report at reasonable intervals to the LEA on the employee’s status and intention to

return to work. The LEA may require that the employee provide certification that the employee is

able to return to work.

Reinstatement is not required if an employee is reduced in force during the course of taking FMLA

leave. The LEA has the burden of proving that the reduction would have occurred had the employee

not been on FMLA leave.

Benefits: The employee shall be reinstated without loss of benefits accrued when the leave began.

All benefits accrue during any period of paid leave; however, no benefits will be accrued during any

period of leave without pay.

Health Benefits: The LEA shall maintain coverage for the employee under the State's Health Plan

for the duration of leave at the level and under the conditions coverage would have been provided if

the employee had continued employment. Any share of health plan premiums which an employee

had paid prior to leave must continue to be paid by the employee during the leave period. The LEA

must give advance written notice to employees of the terms for payment of premiums during FMLA

leave. The obligation to maintain health insurance coverage stops if an employee’s premium payment

is more than 30 days late. The LEA shall provide 15 days notice that coverage will cease.

If the employee's failure to make the premium payments leads to a lapse in coverage, the LEA must

still restore the employee, upon return to work, to the health coverage equivalent to that which the

employee would have had if leave had not been taken and the premium payments had not been

missed without any waiting period or preexisting conditions.

Advisory Note: Even if the employee chooses not to maintain group health plan coverage for

dependents or if coverage lapses during FMLA leave, the employee is entitled to be reinstated on the

same terms as prior to taking leave, including family or dependent coverage, without any qualifying

period, physical examination, exclusion of pre-existing condition, etc. Therefore, the LEA should

assure that health benefits coverage will be reinstated; otherwise, the LEA would need to pay the

premium and recover it after the employee returns to work.



The LEA may recover the premiums if the employee fails to return to work after the period of leave

to which the employee is entitled has expired for a reason other than the continuation, recurrence, or

onset of a serious health condition or other circumstances beyond the employee’s control. For this

purpose, return to work is defined as 30 calendar days; therefore, if the employee resigns any time

within 30 days after the return to work, the insurance premium may be recovered unless the reason

for the resignation is related to the continuation, recurrence, or onset of a series health condition or

other circumstances beyond the employee's control.

INTERFERENCE WITH RIGHTS

Actions Prohibited: It is unlawful to interfere with, restrain, or deny any right provided by this

policy or to discharge or in any other manner discriminate against an employee for opposing any

practice made unlawful by this policy.

Protected Activity: It is unlawful to discharge or in any other manner discriminate against any

employee because the employee does any of the following:

(a) files any civil action, or institutes or causes to be instituted any civil proceeding under or

related to this policy; b) gives, or is about to give, any information in connection with any

inquiry or proceeding relating to any right provided by this policy; or

(c) testifies, or is about to testify, in any inquiry or proceeding relating to any right provided

under this policy.

ENFORCEMENT:

Violations: Denial of leave requested pursuant to the Family and Medical Leave Act is a grievable

issue and employees, except for ones in exempt positions (policymaking, exempt managerial,

confidential assistants, confidential secretaries and chief deputy or chief administrative assistant),

may appeal under the State Personnel Act. Violations can result in any of the following or a

combination of any of the following and are enforced by the U.S. Secretary of Labor:

a) U. S. Department of Labor investigation;

b) Civil liability with the imposition of court cost and attorney's fees; or

c) Administrative action by the U.S. Department of Labor.

POSTING AND RECORDKEEPING REQUIREMENTS:

Posting: LEAs are required to post and keep posted, in a conspicuous place, a notice explaining the

FMLA provisions and providing information concerning the procedures for filing complaints of

violations of the Act with the U.S. Department of Labor, Wage and Hour Division. (Note: Copies of

the required notice may be obtained from local offices of the Wage and Hour Division.)

Records: LEAs are required to keep records for no less than three years and make them available to

the Department of Labor upon request.



a) In addition to the records required by the Fair Labor Standards Act, the LEA must keep

records of:

1. Dates FMLA leave is taken;

2. Hours of leave if less than a full day;

3. Copies of employee notices;

4. Documents describing employee benefits;

5. Premium payments of employee benefits; and

6. Records of any disputes.

b) Records and documents relating to medical certifications, recertifications or medical histories

of employees or employees' family members, created for purposes of FMLA, shall be

maintained as confidential medical records in separate files/records from the usual personnel

files, and if ADA is also applicable, such records shall be maintained in conformance with

ADA confidentiality requirements, except that:

1. Supervisors and managers may be informed regarding necessary restrictions on the work

or duties of an employee and necessary accommodations.

2. First aid and safety personnel may be informed (when appropriate) if the employee’s

physical or medical condition might require emergency treatment.

3. Government officials investigating compliance with FMLA (or other pertinent law) shall

be provided relevant information upon request.

PARENTAL INVOLVEMENT IN SCHOOLS LEAVE:

Eligibility and Rate of Earning:

a) In accordance with G.S. 95-28.3, any employee who is a parent, guardian or person in loco

parentis may take up to four (4) hours per fiscal year to attend or otherwise be involved at his

or her child's school.

b) There is no requirement that the employer pay an employee while taking this leave.

However, the local school district may allow the employee to use eligible accrued leave in

lieu of non-paid parental involvement leave.

Conditions for Leave: Leave granted for this purpose is subject to the following conditions:

a) The leave shall be at a mutually agreed upon time between employer and employee;

b) The employer may require an employee to provide a written request at least 48 hours before

the time desired for the leave, and

c) The employer may require that the employee furnish written verification from the child's

school that the employee attended or was otherwise involved at the school during the time of

the leave.



Definition of School: For the purpose of this policy, "school" is defined as any:

a) Public school;

b) Private school, church or religious school, charter school, or nonpublic school that regularly

provides a course of instruction;

c) Preschool; or

d) Child day care facility.

------------------------------------------------LOCAL POLICIES-------------------------------------------

Eligibility - Local Policies:

(a) Regular employees who are employed for less than 12 months and/or less than 1250 hours

during the previous 12 months who are not eligible for the benefits and re-employment rights

guaranteed by the Family and Medical Leave Act (FMLA) are eligible under local and state leave

policies for leave without pay for a period of up to twelve (12) months; however, such employees

do not have a right to the continuation of health and dental insurance coverage at Board expense

during a period of leave without pay. Such employees may continue their health and dental

insurance coverage during an approved leave without pay by paying, on a regular monthly basis,

both the employer's and employee's portions of the said insurance premiums. In addition,

employees with five or more years of membership service in the Teachers' and State Employees'

Retirement System may purchase, at full cost, creditable service in the Retirement System for a

leave without pay due to an extended illness or maternity. For more specific information see

N.C.G.S. § 135-4(z) and (aa) or contact the Retirement System.

(b) For information only, the following scale is provided to assist part-time regular employees in

determining whether they are eligible for the benefits of the FMLA:

Approximate Minimum Hours

Employment Term Daily Weekly

12 months 5 hours 25 hours

10 months (200 days) 6.25 hours 31.25 hours

180 days 7 hours 35 hours

Definitions: For the purpose of implementing the FMLA and State Policy, the following terms shall

be used to identify the three types of leave authorized under the FMLA:

a) Family Leave. Reason 1 under the State Leave Policy, to care for a newborn son or daughter

or the placement of a son or daughter with an employee for adoption or foster care.

b) Family Medical Leave. Reason 2 under the State Leave Policy, to care for the spouse, or

son, daughter or parent of the employee if such person has a serious health condition as

defined in the FMLA and State Leave Policy.

c) Medical Leave:. A serious health condition of the employee that makes the employee unable

to perform the functions of the employee's position.



Special Conditions for Family Leave, Reason 1:

a. Procedure for approval of intermittent or reduced schedule leave. Intermittent or reduced

schedule leave must be requested by the employee, in writing, at least 30 days in advance of

the need for the intermittent or reduced schedule leave. The request shall be submitted to the

employee's principal or immediate supervisor. The principal or immediate supervisor:

1. May grant the request;

2. May deny a request for intermittent or reduced schedule leave if granting the request

would adversely affect the continuity of instruction or the performance of the

employee's duties and responsibilities, or

3. May recommend to the personnel division that the employee be assigned to an

alternative position temporarily that has equivalent pay and benefits and which better

accommodates recurring periods of leave.

b. Coordination of Federal, State and Local Leave Policy: An employee may request

Family Leave without pay under the State and Local Leave Regulations for a period of up to

one year. However, if an employee elects to take Family Leave in excess of 12 weeks as

provided by the FMLA, the employee will be financially responsible to repay the employer's

portion of the employee's health and dental insurance premiums that the school system paid

during the period of leave without pay. The repayment of the said insurance premiums shall

be a condition of the employee's re-employment with the school system. However, with the

agreement of the employee and the school system, the employee may repay the said

premiums by payroll deduction upon reinstatement.

Special Conditions for Family Medical Leave, Reason 2:

a. Use of Sick Leave Required: Employees are required to use and, if necessary, exhaust

accumulated sick leave and shared sick leave before requesting leave without pay for this

purpose. Employees may elect to use annual vacation leave but are not required to do so.

b. Spousal Employment: When both spouses are employed by the school system and they

request Family Medical Leave to care for a family member, the aggregate number of

workweeks of leave to which they both may be entitled under the FMLA is 12 weeks in a 12

month period.

c. Certification and Re-certification of Need for Family Medical Leave: will be required as

provided by the school system's local Sick Leave Policy.

Special Conditions for Medical Leave:

a. Use of Sick Leave Required. Employees are required to use and, if necessary, exhaust

accumulated sick leave, extended sick leave and Disability Income Protection before



requesting leave without pay for this purpose. Employees may elect to use shared sick leave

and annual vacation leave but are not required to do so.

b. Certification and Re-certification of Need for Medical Leave is required as provided by

the school system's local Sick Leave Regulations.

Continuation of Health and Dental Insurance:

a. In accordance with the FMLA and State Leave Policies, the school system shall continue to

pay the employer's portion of the employee's health and dental insurance during the first 12

weeks of Family, Family Medical and Medical Leave without pay. (If an employee is eligible

to use and uses annual vacation leave, sick leave, extended sick leave, and/or disability

income protection, the school system will pay the employer's portion of both health and

dental insurance premiums during the entire period of the employee's leave.) While on a

leave without pay, the employee is required to pay monthly to the Finance Division of the

school system the employee's portion of both health and dental insurance premiums and any

premiums for dependent coverage that the employee desires to continue in effect during the

leave.

b. The employee may elect not to continue health and dental insurance during a leave without

pay. However, the employee shall be entitled to reinstate both health and dental insurance

coverage when the employee returns to work.

Reinstatement of Instructional Personnel: The special Federal and State policies relating to the

reinstatement of instructional personnel at the end of a school term apply to the end of any semester.

See ‘LEA Responsibilities’ above.

Legal References: Americans With Disabilities Act, 42 U.S.C. 12101 et seq.; Family and Medical

Leave Act of 1993, as amended, 29 U.S.C. 2601 et seq.; 29 C.F.R. pt. 825; National Defense

Authorization Act for 2008, Pub. L. 110-181 sec. 585; North Carolina Public Schools Benefits and

Employment Policy Manual, N.C. Department of Public Instruction (current version)

Cross References: Leave of Absence (policy 7510)

Adopted: August 28, 2000

Revised: August 2010; July 22, 2013